When Punishment Breeds Crime

The NY Times has an important article today about the extent to which ex-offenders are burdened by court costs. There have been some further comments on the issue here. I know what many folks will say: criminal offenders, not society, should pick up the secondary costs of their behavior. Clearly, it is appropriate for people who have money to pay for court costs and perhaps even the cost of incarceration. But most people who commit crimes are poor. So while justice may demand offenders to pay, common sense requires that courts be very careful in assesssing such charges.

There are at least two reasons why indigent offenders should be assessed minimal, if any, costs. First, as a practical matter, these individuals will take a very long time to pay up. In many cases, this means that they will remain on probation – with all the associated administrative costs – for longer than the sentence otherwise demands. (Probation often remains open until all costs are paid, irrespective of the underlying sentence.) Aggressive judges actually incarcerate offenders for non-payment when they find (sometimes incorrectly) that the offender had money but simply didn’t share it with the courts. Incarceration is incredibly pricey. It’s a reasonable expense to stop serious crime, but excessive when the only “crime” is a failure to contribute $100 to the public fisc.

A second problem with these fees, even for those who can marginally afford them, is that they can tip poor offenders over the brink. Among the poor, criminal convictions and incarceration create very dark economic futures. There has been some important literature showing that incarceration – and particularly the poverty that follows when offenders leave jail – damages offender communities and leads to further crimes spikes. This in turn leads to more incarceration. Ex-offenders are already saddled with a large bundle of economic and social sanctions, often termed collateral punishment or civil disabilities. They have trouble getting jobs, housing, licenses, and other things essential to earning a living. Earning a living, in turn, is typically a precondition for staying out of trouble. To the degree that these fees make economic survival more difficult, they are counterproductive: they produce crime.

This is not a bleeding heart versus tough love issue. It is a matter of pragmatism. Bernie Ebbers should share the costs of his trial and punishment if he has some cash lying about. But while there may be moral arguments for dunning the average John Doe, practical considerations suggest we shouldn’t.

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Thank you to Concurring Opinions for a thoughtful commentary on this story from the New York Times (23 Feb), highlighting how former prisoners are often saddled with debt as a result of the various fees they are charged in connection with their convict…